103 P.2d 866 | Kan. | 1940
The opinion of the court was delivered by
Plaintiff brought an action to recover a real-estate commission. From a ruling sustaining a demurrer to his petition he appeals to this court.
Omitting portions not now material, the plaintiff’s petition alleged that the defendant had exclusive charge of a ranch of 2,080 acres in Dickinson county, owned by a corporation of which defendant was the general agent. On April 25, 1938, defendant addressed a letter to plaintiff advising him he was to have exclusive sale listing of the ranch until notified in writing of withdrawal and to price it in accordance with prior understanding and subject to approval of the owners. Plaintiff commenced efforts to sell the ranch for the agreed price of $84,900, it being agreed he should receive a com
“Anything herein to the contrary notwithstanding, it is mutually agreed and understood that the sale of said properties as a whole is subject to sales consideration acceptable to owner, and that the sale of any portion of said ranch less than the whole thereof must first have the written consent of owner. It is the further intent hereby to provide that upon complete performance of any contract or contracts hereafter submitted by agent and which shall have been approved by owner, shall result in earned commission to agent of the percentage of said sales contracts as hereinbefore stated.”
The petition further alleged that when the contract was about to expire, plaintiff was orally given an extension so he could have sufficient time to close his deals; that on June 10,1938, the defendant notified him the land was sold, but on that date he had already procured purchasers for all of the land who were ready, willing and able to purchase the lands for more than §84,900, and the petition contains a list of twelve persons and the lands each would take, the
Appellant directs our attention to cases holding that a real-estate agent has earned.his commission when he procures a purchaser ready, willing and able to buy on the seller’s terms, and that for that reason he is here entitled to recover. It is to be observed here that plaintiff had a contract which specified the conditions under which he was to receive a commission. He was not to receive any commission until the contracts procured by him had been complied with in full, and any sale of less than all was subject to the express written approval of the owner. There is no allegation that he ever submitted any contract to the owner for approval or that the owner ever approved any contract. Appellant argues that it was the duty of the appellee to submit the contracts to the owner, but there is no allegation he ever tendered or delivered to the defendant any contract or contracts so that they might be submitted to the owner nor that defendant in any way prevented his performance. It was a condition of the contract, stated and restated, that if less than the whole ranch was sold the contracts had to have the express written approval of the owner.
In Karr v. Moffett, 105 Kan. 692, 185 Pac. 890, it was held:
“The ordinary rule that a real-estate agent is entitled to his commission when he procures a purchaser who is ready, willing, and able to buy, or when he brings a buyer and seller together, who make a bargain on different terms than those theretofore dictated to the agent, does not apply where the agent’s commission is governed by a special contract between him and his principal.” (Syl. ¶ 2.)
That rule is applicable and controlling here. (See, also, same case in 106 Kan. 379, 187 Pac. 683, and Wenkheimer v. Hager, 129 Kan. 518, 283 Pac. 489.)
The petition pleaded a special agreement for a commission on the sale of real estate. There was no allegation the plaintiff had complied with the terms of the contract. The petition did not state facts sufficient to constitute a cause of action, and the trial court properly sustained the demurrer.
The judgment of the trial court is affirmed.